Leaving a Local Law Enforcement Partner in the Lurch: With Friends Like ICE, Who Needs Enemies?

If you spend any time at all browsing the website of Immigration and Customs Enforcement (ICE), or reading any of the shiny, parti-colored pamphlets that they seem to produce like confetti these days at taxpayer expense, you'll see multiple references to their endeavors with "state and local partners".

A: Detainers are critical for ICE to be able to identify and ultimately remove criminal aliens who are currently in federal, state, or local custody.

ICE relies on the cooperation of our state and local law enforcement partners in this effort.

They seem to put a lot of stock in that phrase. But exactly how deep does that sentiment run, and what does it mean to them?

Well, now we know, thanks to a lawsuit filed by an illegal alien advocate in Tennessee — and it doesn't exactly cover the agency in glory. Even more ironic, it relates to this very issue of a law enforcement partner honoring ICE detainers.

To top off this banquet of ironies, many law enforcement agencies these days choose not to honor ICE detainers. Speaking of the refusal of the Cook County Sheriff's Office to do so, the Chicago Tribune had this to say: "[ICE Director] John Morton has harshly criticized a Cook County ordinance that orders the sheriff's office to ignore ICE detainers and release illegal immigrants who have been jailed on other charges after they've posted bail."

So you'd think Morton would be glad that some law enforcement "partner" somewhere in this great nation was willing to help out, right? Not so fast there, Hoss; let's not lean too far forward in the saddle. Let's look at the lawsuit I mentioned.

In February of this year, attorney Andrew Free filed a complaint in U.S. District Court in Nashville on behalf of a number of illegal alien "residents" of middle Tennessee (in a class action case, although it's not clear whether the class action has been granted from the documents I've seen), alleging a violation of their rights. Each of the plaintiffs was cited by Williamson County Sheriff's deputies for driving violations, appeared at the Sheriff's Office in response to the citation, was questioned about his or her immigration status, and thereafter, on request of ICE officers, detained for that agency. Plaintiffs allege that Williamson County had no right to question or detain the individuals on behalf of ICE.

Although the defendant is the county government, because the cause of action underlying the lawsuit relates to a federal law enforcement agency, the presiding judge issued an order specifically inviting that agency — ICE — to file an amicus (friend of the court) brief, indicating its views on the lawfulness of the county sheriff's office in complying with ICE's detainers. Here's where it gets dismaying: ICE declined to do so.

Now, as far as I can see, there is ample law and regulation to cover what the Sheriff's Office did. For instance, 8 U.S.C. 1373 provides plenary authority for state and local officers to seek information from federal agencies relating to the immigration status of individuals, and obligates the federal government to respond. This happened.

And when the federal government responded, in the form of its local agents, they ordered the detention of the individuals on the basis of their illegal status in the United States. That appears to be right in line with the provisions of 8 C.F.R. 287.7 — and that is precisely the regulatory citation provided by ICE itself on the website I referenced earlier, which contains this relevant Q-and-A (emphasis added):

Q: Where does ICE's authority to issue a detainer stem from?

A: By issuing a detainer, ICE requests that a law enforcement agency notify ICE before releasing an alien and maintain custody of the subject for a period not to exceed 48 hours, excluding Saturdays, Sundays, and holidays, to allow ICE to assume custody. This request flows from federal regulations at 8 C.F.R. § 287.7

The deafening silence on ICE's part puts its "law enforcement partner" in the invidious position of having to defend itself based on immigration law, something that the legal experts in the agency presumably know and could have cited in an amicus brief, had they chosen to do so. Why wouldn't they? Hmmm. Maybe they're too busy defending the agency against lawsuits filed by their own employees to have the time to help out a friend who was helping them do their own jobs.

Absolutely amazing. As I said at the beginning, with friends like ICE …

The Center for Immigration Studies is an independent, non-partisan, non-profit research organization founded in 1985.
It is the nation's only think tank devoted exclusively to research and policy analysis of the economic, social, demographic,
fiscal, and other impacts of immigration on the United States.